Commonwealth v. Read — Trial ArchiveBrian Tully - Direct (Part 1)
296 linesJUDGE CANNONE: Your next witness, Mr. Lally?
MR. LALLY: Yes, your honor. The Commonwealther call Lieutenant Brian Tully to the stand.
COURT CLERK: You swear to tell the court and jury in this case the truth, the whole truth, and nothing but the truth, so help you God?
MR. TULLY: I do.
JUDGE CANNONE: All right, Mr. Lally, whenever you're ready.
MR. LALLY: Thank you. Good afternoon, sir.
MR. TULLY: Good afternoon.
MR. LALLY: Would you please state your name and spell your last name for the jury?
MR. TULLY: Brian Tully — T-U-L-L-Y.
MR. LALLY: And how are you employed, sir?
MR. TULLY: With the Massachusetts State Police.
MR. LALLY: And how long have you been a member of the State Police?
MR. TULLY: 18 years.
MR. LALLY: And what rank or assignment do you currently have with the Massachusetts State Police?
MR. TULLY: The rank I hold is Detective Lieutenant, and my current role is the unit commander for the Norfolk State Police Detective Unit.
MR. LALLY: And how long have you been — let me ask you first — as far as how long have you been Lieutenant of the State —
MR. TULLY: I was a first lieutenant in 2021, and then I attained the rank of Detective Lieutenant later in 2021.
MR. LALLY: And with reference to your current unit, how long have you been a member of that?
MR. TULLY: I've been with the Norfolk State Police Detective Unit for 12 years.
MR. LALLY: And prior to and throughout the course of your work within the detective unit — the Norfolk DA's office for the State Police — what, if any, specialized training have you received and/or given in regard to investigations and how they're conducted?
MR. TULLY: For the first 10 years, as the rank of trooper and sergeant, I was on the homicide section of the unit. Upon first entering the unit, I received instruction on how to conduct homicide and death investigations. In addition to that, I attended over 200 hours of specialized training in the use of cell phones and cell phone technology in the furtherance of criminal investigations. Further on, I have now become an instructor about cell phones and cell phone technology in criminal investigations. I've taught death investigation classes around the Commonwealth, as well as search and seizure law in Massachusetts.
MR. LALLY: Now, if I could ask you — with respect to your unit — if you could explain to the jury sort of what is the role and what does your unit do with respect to death investigations within Norfolk County.
MR. TULLY: So each district attorney's office has a state police detective unit assigned to it. Mass. General Laws Chapter 38, Section 4 says that the district attorney is in charge of all death investigations, so if someone passes away — essentially not in the presence of a doctor, or the circumstances that led to their death were outside the presence of medical care — the district attorney is in charge of the investigation, or their representative. And so each DA has a state police detective unit assigned to them to act as their representative.
MR. TULLY: In certain jurisdictions like Boston, Worcester, and Springfield, the DAs in those counties have said that those local departments can be their representatives, but throughout the Commonwealth the state police is the DA's representative in those death investigations.
MR. LALLY: Now, as far as assignments go — as far as how an investigation is run — how is it that a call comes in? If you could take the jury through, sort of, from the time that a call comes in, how that investigation begins.
MR. TULLY: I'll talk in a typical scenario. Often times someone passes away — again, not in the presence of a doctor — gets found by somebody: a loved one, a friend, a passer-by. They call 911, which gets routed to the local police, who respond and come to learn that someone has passed away. In that circumstance, that police department will then call the troop headquarters on the state police. The state police is cut up in different troops by geographic location. Each troop duty lieutenant would have a list of who the on-call person is for the state police detective unit of jurisdiction. They would then call that trooper or sergeant directly to inform them that there's a death in a certain community, and give them a telephone number to contact somebody who's directly on scene to get more information.
MR. LALLY: Now, as far as your role — — as sort of the supervisor lieutenant in charge of the unit, can you describe to the jury sort of what your role is in regard to those investigations?
MR. TULLY: So within the detective unit we have the homicide section, a narcotics section that does narcotics investigations, and a special investigation section. So specific to the homicide section, there are certain levels of supervision. We have a sergeant assigned to the homicide section, I have an executive officer who's a lieutenant, and then me. So, multiple levels of supervision, specific to any of the sections including the homicide section.
MR. LALLY: Now turning your attention to January 29th, 2022 — at some point did you become aware in the morning with regard to a death within the town of Canton?
MR. TULLY: Yes.
MR. LALLY: And what, if any — when did you become aware and how did you become aware initially of what had transpired?
MR. TULLY: Shortly after 7 a.m. that date I received a call from Sergeant Yuri Bukhenik informing me that a person by the name of John O'Keefe was found unresponsive in Canton. He was transported to Good Samaritan Hospital where it was expected he was not to survive. Normally I would not get a call like that, but we learned that Mr. O'Keefe was an active Boston police officer, so Sgt. Bukhenik wanted to make me aware of it. At that point. And so then what happened from there as far as your unit's involvement? So as we learned more information about what was found on scene by the Canton Police Department, Trooper Proctor — who was the on-call, excuse me, the on-call trooper that day on the schedule — and Sgt.
MR. TULLY: Bukhenik responded to Canton Police to begin the investigation, and they would keep me updated as they learned more information.
MR. LALLY: Now as far as your unit is concerned, what if any role does your unit have, or what if any jurisdiction does your unit have with relation to any kind of death, whether it be homicide, suicide, unattended death, within the confines of Norfolk County?
MR. TULLY: We have exclusive jurisdiction by law, but the law also suggests that we need to work with the local police departments as well.
MR. LALLY: And so how is it that typically in a typical investigation your unit would work in conjunction with the local police department in relation to a death investigation?
MR. TULLY: Their detective unit would be involved if they have one — some departments in Norfolk County don't. They would stand by to wait for our arrival. There'd be constant communication between the responding trooper and the detective on scene about things that need to be done prior to our arrival. But essentially, ask for our guidance, or wait for our guidance on what to do next.
MR. LALLY: And as far as certain investigations go, are there decisions sometimes that are made with regard to your involvement, or maybe your unit not being involved in a death investigation?
MR. TULLY: Yes.
MR. LALLY: And how are those determinations made and who makes those determinations?
MR. TULLY: It falls through either the person who's on call or their supervisor. We don't respond to all of those calls. So a police officer may call and say that a woman in her 80s has passed away in bed overnight, her primary care doctor has said that she struggled with cancer treatment, and that that doctor is willing to sign a death certificate. In those circumstances it's not suspicious, it's not a suicide or fatal opiate overdose — we would not respond in that case. That would be one that we would decline. In other circumstances we may get the call and then learn that the person's going to survive, and so we will not respond. We typically will mirror whether the Office of the Chief Medical Examiner — if they're involved then we'll definitely be involved.
MR. LALLY: Now turning to that point, as far as the Office of the Chief Medical Examiner is concerned, in any sort of death investigation that your unit is involved in, what if any involvement or communication do troopers from your unit or yourself have with the Office of the Chief Medical Examiner?
MR. TULLY: We have constant communication. The law that I cited also says that the Office of the Chief Medical Examiner has exclusive jurisdiction as well to determine the cause and manner of death, so we work closely hand in hand to figure out the circumstances that led to the death.
MR. LALLY: As far as working closely hand in hand with the medical examiner's office, what does that sort of typically entail?
MR. TULLY: It takes the form of phone calls. We'll call in and speak to the intake person or the on-call doctor to tell them what we've learned or what we're observing. We will forward reports in every case to the doctors — their understanding of at least what we learned in the first 24 hours. Doctors will often reach back out to us asking for scene photographs, more reports, ask questions. And in instances where it's a suspicious death, we will send an investigator to the autopsy to stand with the doctor to make observations and answer any questions for the doctor.
MR. LALLY: Now as far as the determinations that ultimately come to by the medical examiner, Lieutenant — as far as any determinations that are made with reference to either cause or manner — in any instance with the medical examiner, what if any role do you or anyone from your unit have with regard to that decision by the medical team?
MR. TULLY: We have little to no role outside of providing information.
MR. LALLY: And as far as the determination specifically, whether it's manner or cause, what if any impact does that have with regard to any death investigation that you're doing?
MR. TULLY: Well, the cause will give us a big indicator, so we want to know if the person died of a heart attack or if they died of a gunshot wound — that's big when it comes to making charging decisions about circumstances. So it's important to learn the cause, and to get the doctor's input on the manner is also helpful.
MR. LALLY: But as far as the manner — if the manner is found to be undetermined, would that impact what you've learned through the rest of the course of your investigation as far as charging goes?
MR. TULLY: No. That determination by the OCME is often in the early stages of investigation, and as we learn more information the circumstances can change. And the determination that is made by the medical examiner, that's strictly from a medical perspective.
MR. LALLY: Correct?
MR. TULLY: Correct.
MR. LALLY: Now with regard to January 29th, 2022, and this call that is initially received — Trooper Proctor and Sgt. Bukhenik then essentially respond to the Canton Police Department first. Is that correct?
MR. TULLY: Yes.
MR. LALLY: And as far as your role as it pertains to this or any other investigation, how much involvement do you have, or how are you sort of apprised of what's going on?
MR. TULLY: Sgt. Bukhenik, in this case and in typical cases, is keeping me updated by telephone so I can supervise from anywhere with my cell phone. He's giving me updates about what he's learning, we will discuss what the next step should be. And that's what transpired over the morning of January 29th.
MR. LALLY: Now over the course of the morning of January 29th, what if any conversations did you have with relation to Canton Police Department's involvement — or ongoing or further involvement — with regard to this investigation?
MR. TULLY: I had spoken with the acting chief at the time — the current chief, well, excuse me, the chief at the time — Kenneth Berkowitz — about the involvement of the Canton Police Department. We talked about the homeowner there at 34 Fairview and his relationship to his department, and because of the appearance of a conflict, we had made a decision that the Canton Police was going to take a step back from the investigation and that the state police would do the investigation without them.
MR. LALLY: Now as far as that appearance of a conflict, or step back as you've termed it, what was your understanding at that time as far as what the role of the Canton Police would be?
MR. TULLY: Really to provide support. Anytime we're in a local community we need the support of the local police. If we're going to start knocking on doors we want to make sure they're aware or present. They have resources in town, whether it be lights or barriers, that we may need to access. So I would define it as a support role.
MR. LALLY: Now with respect to those conversations — you mentioned that you yourself had with the then-acting — the then-current chief, Kenneth Berkowitz — with who if anyone else was involved in those conversations?
MR. TULLY: The district attorney, that would be Mr. Morrissey.
MR. LALLY: Is that correct?
MR. TULLY: Yes.
MR. LALLY: Is that abnormal for him to be involved in conversations in regard to a police department and any sort of appearance of conflict?
MR. TULLY: No, it's not abnormal for him to be involved.
MR. LALLY: And as far as his involvement in his conversations, as far as you're aware, did they evolve or were they any greater or less than the conversations that you had with those you work with?
MR. TULLY: No, they were the same conversations.
MR. LALLY: Let me ask you this, Lieutenant, at some At some point over the course of this investigation, did you become aware of certain text messages on Trooper Proctor's personal phone?
MR. TULLY: Yes.
MR. LALLY: And upon your being made aware of those text communications, what if anything did you — as a supervisor — what if anything did you do?
MR. TULLY: I had a long discussion with him about the content and nature of them. I expressed my displeasure at the unprofessionalism and the content of them, and then I reported up my chain of command.
MR. LALLY: Was he admonished in any way?
MR. TULLY: He was — by me, at that conversation. Yes.
MR. LALLY: Now, sir, again just sort of in general terms — — you're familiar with this investigation, as you're supervising the unit that was investigating it, correct?
MR. TULLY: Yes.
MR. LALLY: Now, is it a typical practice in conducting homicide or death investigations, as far as civilian witnesses are concerned, to seize their personal cell — it's not always done, it happens?
MR. TULLY: Yes.
MR. LALLY: And is that a practice that occurs with respect to every single witness in every single case?
MR. TULLY: No.
MR. LALLY: And so what are sort of the parameters, or what would be some of the reasons that certain civilian witnesses' cell phones would be seized versus —
MR. TULLY: Well, use the word "seize" — so when I think of the word "seize," I'm thinking in the legal context where — — I think there's probable cause to believe it's more likely than not that this is evidence of the crime being investigated, held within the data of that phone. Sometimes, if we believe there is information on a phone, we may ask for consent for that one specific thing or for that one specific reason. But outside of that, unless I have that belief that there's data on a phone, I won't ask for consent or seize a phone and pursue a search warrant.
MR. LALLY: Now, are you aware of certain cell phones that were either seized or granted access to by consent in relation to this investigation?
MR. TULLY: Yes.
MR. LALLY: And specifically, Mr. O'Keefe's phone was taken into custody, correct?
MR. TULLY: Yes.
MR. LALLY: And the defendant's phone was taken into custody on January 29th as well?
MR. TULLY: Yes.
MR. LALLY: Now, as far as civilians, there were two civilian witnesses whose phones were given via consent and then extracted — that being Jennifer McCabe and Kerry Roberts, correct?
MR. TULLY: Yes.
MR. LALLY: And so why was it that Miss McCabe's phone and Miss Roberts's phone was taken versus some other witness?
MR. TULLY: They had information relative to the actions of Miss Read and the communications with specifically those two individuals on the morning of the 29th, so we wanted to memorialize them and save them.
MR. LALLY: Now, sir, with respect to your involvement on January 29th — where and — — when did you sort of leave and become involved in the investigation beyond just supervisory —
MR. TULLY: Shortly after noon, we had learned more information that necessitated a broader search, so I had reached out to — Kevin, excuse me — Lieutenant Kevin O'Hara with the state police search team to assist with processing of a scene. And so since we were going to be processing a scene, it was prudent for me to leave my house, dig out, and drive to Canton.
MR. LALLY: Sir, with respect to — you mentioned "dig out" from your house — what were the conditions like around the time that you were leaving?
MR. TULLY: There's probably 8 to 10 inches at the house, so — — I had to dig out my driveway and the large snowbank at the end of the driveway that's caused by the plow, in order to get a vehicle out and head to Canton.
MR. LALLY: And where is it first that you were heading to?
MR. TULLY: I first went to the Canton Police Department to talk to Chief Berkowitz and wait for the arrival of the search team, and then to 34 Fairview.
MR. LALLY: And as far as the search team was concerned, if you can explain to the jury — sort of the process from your perspective, from your end — as far as activating the search team, what it is that they do, and why you had —
MR. TULLY: We work with Lieutenant O'Hara frequently. I called him on a cell phone. And the search team is out of a different — — chain of command. So the state police is a very paramilitary organization with specific chains of command with different structures. So I reached out to him and asked for his assistance with this investigation. He had to get further approval up his chain of command, mostly for overtime and to pay the troopers to come out. That would be the way that I would make a formal request to the search team.
MR. LALLY: And so the initial phone call that you make to Lieutenant O'Hara — you don't have the power or the authority to sort of direct him to dispatch his team and go to 34 Fairview, correct?
MR. TULLY: Correct. Correct.
MR. LALLY: And so as far as that initial phone call that you made to Lieutenant O'Hara, do you know about what time of day that was?
MR. TULLY: About two in the afternoon.
MR. LALLY: And what was the purpose of sort of that initial phone call that you made to Lieutenant O'Hara?
MR. TULLY: To give him a heads up, because it needs to be a conversation up my chain of command. So above me there's a detective captain and a major. My major needs to really talk to his major to make the formal request. But I wanted Lieutenant O'Hara to be aware that the request was coming, so that he could at least start polling his people to see who was available to respond to Canton.
MR. LALLY: And with respect to the weather, if you could just in general terms for the jury, sort of what you observed as far as the weather conditions on that —
MR. TULLY: I observed blizzard-like conditions. It was snowing heavily, windy, low visibility. Got it. Yes.
MR. LALLY: I'm showing you a series of documents. You can look at those and look up when you finish. And do you recognize those, sir?
MR. TULLY: I do.
MR. LALLY: And what do you recognize those to be?
MR. TULLY: They are certified records from the U.S. Department of Commerce, out of Asheville, North Carolina, for weather reports from Norwood Memorial Airport, Massachusetts, for the dates of January 2022 and February 2022.
MR. LALLY: So for the entirety of the months of January 2022 as well as February 2022, correct?
MR. TULLY: Yes.
MR. LALLY: And are you familiar with Norwood Memorial Airport and where it is in relation to the town of Canton?
MR. TULLY: Yes.
MR. LALLY: Where is it?
MR. TULLY: It's the next town over.
MR. LALLY: And as far as — are you familiar with Neponset Street in Norwood?
MR. TULLY: I am.
MR. LALLY: And there's a Neponset Street that also carries into the town of Canton as — — well?
MR. TULLY: Yes.
MR. LALLY: And with regard to 34 Fairview Road, about how far away is 34 Fairview from Neponset Street?
MR. TULLY: From Neponset Street, it's a mile, two miles.
MR. LALLY: Relatively same geographic area as far as Norwood Memorial Airport and 34 Fairview?
MR. TULLY: Yeah, I would say as the crow flies from 34 Fairview to Norwood Memorial Airport, that's probably three miles.
MR. LALLY: And, sir, with regard to the records — from your memory of those dates and those times in January and February 2022, is that a fair and accurate portrayal of what the weather would look like, temperature-wise as well as precipitation?
MR. TULLY: Yes. I love that question — yes.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes. Admitted into evidence. audio gap
MR. LALLY: And so, Lieutenant, at some point you responded to 34 Fairview Road — is that correct?
MR. TULLY: Yes.
MR. LALLY: And do you recall about what time it was that you arrived there?
MR. TULLY: About 5:30 p.m.
MR. LALLY: And when you arrived there, who if anyone else from the state police was there?
MR. TULLY: There were at least two members of the search team present, including Lieutenant O'Hara.
MR. LALLY: And if you recall, where were they located in relation to the residence?
MR. TULLY: They were directly in front of the residence.
MR. LALLY: Now, as far as their search was concerned, how is a determination made — or who if anyone made a determination — as far as where they were going to —
MR. TULLY: So typically when I work with Lieutenant O'Hara, I kind of give him direction. So in this case specifically, I learned from Sgt. Bukhenik that Mr. O'Keefe was found in an area between the flagpole and the fire hydrant, so we concentrated on that area. And so I talked to Lieutenant O'Hara that this is going to be our parameters, and he instructed his people how to deploy to that area.
MR. LALLY: Now, sir, as far as beyond sort of directing as far as an area is concerned, what if any other involvement do you typically have when it comes to the search team and how they conduct their search?
MR. TULLY: They're professionals, with — expertise in that, so essentially I just point them in the direction and it's up to them to figure out how to deploy it and get the mission done.
MR. LALLY: And so what if any involvement do you have as far as when they begin and how many people are involved or when they end or anything like this?
MR. TULLY: I'll have some consultation with Lieutenant O'Hara but it's really his call to make.
MR. LALLY: And as far as um this particular search on January 29th, how many members of the search team eventually responded and how was the search conducted?
MR. TULLY: There were seven members, uh most if not all had typical uh snow shovels and they used those shovels to systematically go through the snowbank that was in front of 34 Fairview within these two parameters.
MR. LALLY: And now as far as where they were searching, can you describe sort of the road conditions as far as snow removal was concerned or where the precipitation amounts were concentrated with respect to the road?
MR. TULLY: So the road was only plowed really right down the middle, um barely two vehicles could get by at a time, the snowbanks on either side of the road were protruding into the road, um so uh that was kind of the snow setup, um our cruisers were just kind of buried in snowbanks a little bit down the road.
MR. LALLY: And sir, as far as this search was concerned, what if any information did you provide to Lieutenant O'Hara as far as uh items being searched for or what was he directed to be looking for?
MR. TULLY: There were two items specifically we were looking for — um potential pieces of a tail light of a vehicle and a shoe.
MR. LALLY: And as far as a shoe and potential pieces of a tail light, where did that information come from or why were those the items that were being sought?
MR. TULLY: Relative to the shoe, um when Sgt. Bukhenik and Trooper Proctor responded to Good Samaritan Hospital and collected the clothing of Mr. O'Keefe, they realized that there was only one shoe present at the hospital. They had contacted the Canton EMS and other people who cared for him and they'd learned that um a shoe wasn't removed at the scene and that uh when Canton Fire and EMS arrived Mr. O'Keefe only had one shoe on, so uh it was important to locate that second shoe. Relative to the tail light, we had gotten information that witnesses stated that Miss Read's vehicle had a broken tail light and so we were looking for evidence uh of it being broken at that location.
MR. LALLY: And to the search that was conducted by Lieutenant O'Hara and members from the search team, where was that in relation to either the roadway or the front lawn of 34 Fairview?
MR. TULLY: Well, as we were excavating this — or as they were excavating this snowbank in front of it — we realized that the snowbank protruded about 3 feet into the roadway, so as they were moving this first part of the snowbank they were essentially shoveling the road, um and so as they continued on there they would then hit the curb area.
MR. LALLY: And as far as beyond the curb area as far as grass or the front lawn, were certain team members from your observations able to go beyond the curb into the front lawn area?
MR. TULLY: No, they were having difficulty shoveling uh with plastic snow shovels onto the lawn.
MR. LALLY: Your Honor — oh, actually, sorry. Lieutenant Tully, with respect to the search team uh in their search, what if anything did you do to document and memorialize uh their efforts as far as any items that were found?
MR. TULLY: I took photographs of items that were eventually found in place and documented them in a report, and um they were collected in evidence bags.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: I may have one moment.
JUDGE CANNONE: Yes. Jurors, we'll be stopping at 4 today.
MR. LALLY: And sir, with respect to — I'm going to place before you — I'm going to direct your attention to what is marked as exhibits 111 through 134, and just in general I'm just going to ask — do you recognize those?
MR. TULLY: I do.
MR. LALLY: What do you recognize those to be?
MR. TULLY: The photographs that I took that afternoon.
MR. LALLY: May I approach?
JUDGE CANNONE: Yes.
MR. LALLY: I don't want to belabor the point, but if I could just uh publish just a couple of these exhibits, and uh Miss Gilman if I could have exhibit 111. Lieutenant, there should be a uh laser pointer on the desk before you. Um if I could ask, first of all do you recognize what's uh up on the screen as exhibit 111?
MR. TULLY: Yes.
MR. LALLY: And what do you recognize that to be?
MR. TULLY: The front of 34 Fairview Road in Canton and the flagpole I previously mentioned.
MR. LALLY: And if you could, using the laser pointer, just direct the jury's attention to what if anything of significance you observe in this.
MR. TULLY: So this picture was taken to memorialize this um piece of red plastic here.
MR. LALLY: And if I can have exhibit 114 again — Lieutenant, do you recognize what's up on the screen as exhibit 114?
MR. TULLY: Yes.
MR. LALLY: And if you could, using the laser pointer, direct the jury's attention to what if anything of significance you observe.
MR. TULLY: It's that same previously mentioned uh red plastic. Uh, the purpose of the multiple photographs — I'll take one as an overall and as I get closer I'll take more photographs to give better context.
MR. LALLY: And these photographs of these items — the items that you're photographing — were they moved in any way prior to you memorializing that photograph?
MR. TULLY: Yes, this piece in particular — a certain member as he was removing the snow with the shovel had picked up this piece of plastic with it, um I asked him to place it back where he found it, where it approximately was, so that I could memorialize it in place.
MR. LALLY: It was picked up and you asked him to put it back where he found it, and he did so?
MR. TULLY: Yes.
MR. LALLY: Miss Gilman, if I could have exhibit 117, and again Lieutenant, do you recognize what's up on the screen as exhibit 117?
MR. TULLY: Yes.
MR. LALLY: What do you recognize that?
MR. TULLY: Members of the search team doing their excavation of the snowbank.
MR. LALLY: Miss Gilman, if I could have exhibit 120. Again sir, do you recognize what's up on the screen as exhibit 120?
MR. TULLY: Yes.
MR. LALLY: And uh if you could, using the laser pointer, direct the jury's attention to what if anything of significance you observe in this photograph?
MR. TULLY: A black Nike sneaker with a white sole that was recovered in the snowbank.
MR. LALLY: And at some point subsequent to this, what if any comparison did you do visually with the uh sneaker that you observed uh in this photograph uh with respect to the sneaker that was recovered from Good Samaritan by Trooper Proctor and Sgt. Bukhenik?
MR. TULLY: They matched both in make, model, size. The shoe that was recovered by the troopers at the hospital was a right sneaker, this one found was the left, or a left.
MR. LALLY: Miss Gilman, if I could have photograph 127, and again sir, do you recognize what's up there as exhibit 127?
MR. TULLY: Yes.
MR. LALLY: And if you could uh using the laser pointer direct the jury's attention to what if anything of significance you observe in that.
MR. TULLY: A clear piece of plastic.
MR. LALLY: Now with respect to this clear piece of plastic, what if anything did you observe or did you note a significance as far as the um surface of that particular piece of clear plastic?
MR. TULLY: I noticed that it has a curvature in shape, uh and there are raised um dimples — for lack of a better term — that were along uh the outside of this piece of plastic on one side of it.
MR. LALLY: Now Miss Gilman, if I could have uh lastly from this group exhibit 131, and again Lieutenant, do you recognize what's up on the screen as exhibit 131?
MR. TULLY: Yes.
MR. LALLY: What do you recognize that?
MR. TULLY: That is a photograph that I took at 34 Fairview that depicts a red piece of plastic.
MR. LALLY: Now with respect to the items that were uh observed um and photographed by you uh on January 29th during the search team's search, what happened with those items from the scene?
MR. TULLY: They were collected, placed in an evidence bag and brought back to our offices to be secured.
MR. LALLY: And um if you could um — as far as the evidence sort of system as is uh conducted uh with regard to this case and other cases and investigations uh within your unit — can you explain to the jury that process? So sort of once an item is seen or an item of evidentiary value is seized, what happens?
MR. TULLY: Well, uh first to provide context — by policy I am the Evidence Officer for the unit and I have assistant evidence officers who assist me in uh the caretaking of the evidence. So uh we'll use this particular instance where evidence is collected at a scene — it's memorialized and placed in um — if it's the right shape and the right condition — in a paper bag um with some notes placed on the outside of the bag, transport it to our office where it's secured either in the temporary locker or the permanent evidence area.
MR. LALLY: And as far as when it's taken in custody and put into a bag, um what is sort of the protocol or the policies with regard to how that bag is marked or what is done with that bag once you have the item contained there?
MR. TULLY: There are certain pieces of information that will typically go on the bag — the name of the person who is picking the evidence up, the date, time, location, a brief description of the evidence contained in the bag. Uh it will then be taped and initials will be placed on the tape to memorialize who did the taping and the date in which the taping occurred.
MR. LALLY: And as far as the supervisor — as far as um evidence is concerned, you mentioned that there are some evidence officers assistant to you as the actual Evidence Officer?
MR. TULLY: Yes.
MR. LALLY: And at this time in January 29th 2022, who were those evidence officers within your unit relative to the homicide section?
MR. TULLY: It was Trooper Jeff Kotowski and Trooper David DiCicco.
MR. LALLY: Now with respect um to the evidence storage uh at your office, can you explain to the jury sort of how
MR. TULLY: That's managed, where it is, and how items are checked in to evidence once they're secured — we have an evidence tracking system, so as evidence comes in we place it into the system. A label will be created and placed on the outside with the case number and an item number specific to that bag. It will be placed into the evidence room, which is locked in two different methods and has an alarm code pad, and you need your ID pass to swipe in order to enter, and only certain members of the unit have access and know the code to the alarm — myself obviously being one, and the two assistant evidence officers. And that's subject to inspection by the state police frequently.
MR. LALLY: So correct me if I'm wrong, but at this time it's essentially yourself, Trooper DiCicco, and Trooper Kotowski who had access to that evidence storage area?
MR. TULLY: Yes.
MR. LALLY: Now with respect to the remainder of the troopers within your unit, would they have access to that same evidence storage area?
MR. TULLY: No.
MR. LALLY: Now with respect to your unit at this time, January, late January of 2022, how many troopers were in your unit or under your supervision in the unit at that time?
MR. TULLY: There were 13 under my supervision for the unit as a whole. Specific to the homicide section there were four troopers and one sergeant.
MR. LALLY: And that number, as far as four troopers and one sergeant, is that sort of a typical number, a low number, high number?
MR. TULLY: Historically for Norfolk, that was a low number. We have since had more transfers come into the unit.
MR. LALLY: How many do you supervise within the homicide unit at this point?
MR. TULLY: One sergeant and seven troopers.
MR. LALLY: Now with respect to the evidence storage area, is there sort of a temporary versus a permanent storage area contained within that locked storage area?
MR. TULLY: Yes.
MR. LALLY: And can you describe sort of the difference between the two and how things are managed by either you or your assistants with regards to evidence
MR. TULLY: Within that locked storage area? So because only essentially three people have access to the permanent storage area, if a member collects evidence and brings it back to the office and does not have access to the main storage area, we have another temporary storage area that is allowed by policy, where they can then secure the evidence. The next available time, the person who has access to the main room will come in and transport that piece of evidence from the temporary area to the permanent area.
MR. LALLY: There's no notation from one location to the other, as allowed by policy.
MR. LALLY: And as far as when items are seized and when their labels are sort of printed in relation to those items, is that always done simultaneously when the item comes in, or how is that typically done timing-wise?
MR. TULLY: Same with the label printing system — so only the evidence officers have the ability to create the labels and put it into the system, so you need them to create the label. So if a member comes in and doesn't have access to that system, places it in the temporary storage area, at the next available opportunity for an evidence officer or assistant evidence officer to arrive, know that there's evidence there, and process it, place a label on it, and put it in the permanent storage area.
MR. LALLY: Now with respect to those items that you recovered from 34 Fairview Road, at the roadway in front of it, where were those items located with respect to each other?
MR. TULLY: They were in total within a five-foot area. So if you're looking at the house from right to left, that was how they were found. First was the first picture you displayed, which was the red piece of plastic. About three feet from that was the Nike sneaker. About one or two feet to the left of that was the clear plastic, and just next to that was another piece of red plastic along the curb of the road.
MR. LALLY: And as far as those items that were recovered and bagged and placed in evidence on January 29th, did you have occasion to bring those items with you to court today?
MR. TULLY: Yes.
MR. LALLY: Your Honor, may I approach?
JUDGE CANNONE: Yes, sir.
MR. LALLY: [unintelligible — presenting item to witness] Lieutenant, I'm placing the item before you. Do you recognize that?
MR. TULLY: Yes.
MR. LALLY: And what do you recognize that to be?
MR. TULLY: The bag that contains the left sneaker that was seized from 34 Fairview Road that day outside the residence.
MR. LALLY: And with the court's permission, may the witness remove that item from the bag and display it for the jury?
JUDGE CANNONE: Yes. [unintelligible — sneaker displayed to jury] You can place that back.
MR. LALLY: I would seek to introduce and admit as the next exhibit.
JUDGE CANNONE: Okay, Exhibit 569. [unintelligible — direction about remaining bags]
MR. LALLY: Do you recognize each of those respective bags, sir?
MR. TULLY: Yes.
MR. LALLY: What do you recognize those to be?
MR. TULLY: The bags that contain the red and clear plastic pieces that were recovered from the roadway in front of 34 Fairview Road.
MR. LALLY: And sir, if you could, just with respect to each of those bags, read what is listed as a description on the outside of the bag to the jury.
MR. TULLY: The description on this first one is: pieces of clear hard plastic tail light cover, location 34 Fairview Road, Canton.
MR. LALLY: And the second, please.
MR. TULLY: The description is: pieces of red hard plastic tail light cover, location 34 Fairview Road, Canton.
MR. LALLY: Your Honor, with the court's permission, I would ask that the witness be allowed to open each of those bags and display the items for the jury.
JUDGE CANNONE: Okay.
MR. LALLY: And sir, if I could ask you to start with the red plastic.
MR. TULLY: Okay.
MR. LALLY: I would seek to introduce and admit those as the next exhibit.
JUDGE CANNONE: All right. Mr. Jackson, they're coming in.
MR. JACKSON: No objection.
JUDGE CANNONE: Thank you. Exhibit 570.
MR. LALLY: Lieutenant, before we get to the next item before you, if I could just ask a couple of questions in regard to the search, January 29, 2022 — about what time did you arrive in the area of 34 Fairview?
MR. TULLY: About 5:30.
MR. LALLY: And had yourself or any members of your unit, to your knowledge, been at 34 Fairview at any point in time prior to your arrival there that day?
JUDGE CANNONE: I'll allow it as to whether he knows whether there were or not.
MR. TULLY: No.
MR. LALLY: And about how long was it that you were on scene at 34 Fairview?
MR. TULLY: About an hour.
MR. LALLY: Now with respect to when these items were found, do you know approximately what time the first item was located by a member of the search team?
MR. TULLY: Yes.
MR. LALLY: And what time is that?
MR. TULLY: 5:45.
MR. LALLY: Now with respect to at any point in time that you were on scene at 34 Fairview Road on January 29th, 2022, was either Trooper Proctor or Sergeant Bukhenik on scene at 34 Fairview while you were there?
MR. TULLY: No.
MR. LALLY: And with respect to around that time, as their supervisor, were you aware of where they were or their location at that time?
MR. TULLY: Yes.
MR. LALLY: And where was that?
MR. TULLY: They were following a tow truck that was towing Miss Read's vehicle from Dighton to Canton.
MR. LALLY: Now with respect to the vehicle and/or the pieces of red and clear plastic that were found by the search team at 34 Fairview Road on January 29th, what if any conversation did you have with Lieutenant O'Hara in regard to the vehicle and sort of the damage on—
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow that.
MR. TULLY: We wanted to know what we're looking for. Specifically, Lieutenant O'Hara wanted to know: what are we looking for, and what's the scope of the items we're looking for? So we had a discussion about how much tail light we believed was missing from Miss Read's vehicle, so that as we go along, we would know if we had it all, I should say.
MR. LALLY: And so with respect to that, what if anything were you able to share with Lieutenant O'Hara with respect to Miss Read's vehicle at that particular time?
MR. TULLY: I didn't have much information because it was still on a tow truck or being loaded up into the Canton Police Department at that time, so I didn't have any actual knowledge of how much tail light we were looking for.
MR. LALLY: And prior to you leaving from the scene at 34 Fairview Road along with the search team on that date of January 29th, even at that time did you know the full extent, or how much tail light you were looking for at that time?
MR. TULLY: No.
MR. LALLY: Now sir, if I could ask you — with the court's permission, Your Honor — to remove the items from that second bag.
JUDGE CANNONE: Yes.
MR. LALLY: Lieutenant, from the two items that you have before you in your hand, you mentioned one of those clear pieces having some sort of stippling or raised surfaces on it. Is that correct?
MR. TULLY: Yes.
MR. LALLY: And if you could, just with your finger or in some way, delineate to the jury where you observe that to be.
MR. TULLY: So on — you can see it as you look through it — you can see almost a bubbling of it, and as you run your finger along you can feel indentations along there, as well as the ridges that are along the top end here, that appear on both pieces.
MR. LALLY: Lieutenant, if you could, you can place those items back, and ...back. Would seek to introduce as the next exhibit. No objection.
JUDGE CANNONE: This is 571. You're on my — um — given the time and given where I am, why don't you — [unintelligible] — I'm going to, rather than while we keep talking, I'm going to go ahead and send you home. Please do not discuss this case with anyone. Don't do any independent research or investigation into the case. If you happen to see or read anything about the case, please let us know. We'll see you tomorrow. Tomorrow will be 9 to 4 — 9 to 4:30. We hope to get started right away. Okay, leaving your notebooks on your chair. All right.
COURT OFFICER: Jury out. [unintelligible sidebar — jury has exited] [unintelligible]